244 F.3d 1279 (11th Cir.

2001)

Veronica SATZ, as personal representative of the Estate of

Marcos Satz, deceased, Plaintiff-Appellant,
v.
McDONNELL DOUGLAS CORPORATION, a corporation,
Defendant-Appellee.
Maria Silvina Rumachella, as personal representative of the
Estate of Viviana Teresita Rumachella, deceased, PlaintiffAppellant,
v.
McDonnell Douglas Corporation, a corporation, DefendantAppellee.
Leonor Andrea Alvarez, as personal representative of the
Estate of Fernando Daniel Alvarez, deceased, PlaintiffAppellant,
v.
McDonnell Douglas Corporation, Defendant-Appellee.
Laura Raquel Gimenez, as personal representative of the Estate
of Celia Mazza, deceased, Plaintiff-Appellant,
v.
McDonnell Douglas Corporation, a corporation, DefendantAppellee.
Daniel Jorge Vazquez, as personal representative of the Estate
of Susana Ines Trotta, deceased, Plaintiff-Appellant,
v.
McDonnell Douglas Corporation, a corporation, DefendantAppellee.
Nos. 00-11383, 00-11385, 00-11386, 00-11839 and 00-11840.

United States Court of Appeals,

Eleventh Circuit.
March 22, 2001.
April 3, 2001.

Appeals from the United States District Court for the Southern District of
Florida. (Nos. 99-01425-CV-SH, 98-02356-CV-SH, 98-02354-CV-SH,
99-01426-CV-SH, 98- 02355-CV-SH), Shelby Highsmith, Judge.
Before TJOFLAT and DUBINA, Circuit Judges, and SHAPIRO* , District
Judge.
PER CURIAM:

Veronica Satz, personal representative of the Estate of Marcos Satz, deceased,

and the four other plaintiffs in this action (all personal representatives) appeal
the district court's order of dismissal upon the ground of forum non conveniens.
We find no reversible error and therefore affirm.
I.

This case arises out of the crash of Austral Airlines Flight No. 2553 near Nuevo
Berlin, Uruguay, on October 10, 1997. The flight originated in Posadas,
Argentina, and was en route to Buenos Aires, Argentina. The crash killed all 74
persons on board, including the plaintiffs' decedents. Five personal
representatives of the estates of the deceased passengers filed civil actions,
based on diversity of citizenship, in the United States District Court for the
Southern District of Florida.1 Each plaintiff claimed that the defendant,
McDonnell Douglas Corporation ("MDC"), was liable for the wrongful death
of his or her decedent based on product liability for the defective design of the
DC-9 model aircraft involved in the crash and MDC's negligence in the design,
manufacture, assembly, sale, distribution, and provision of services to operators
of the aircraft.

MDC, arguing that Argentina was the proper forum for the cases, moved to
dismiss the actions based upon forum non conveniens. The district court
granted MDC's motion to dismiss, and subsequently denied the plaintiffs'
motions to reconsider and vacate. The plaintiffs filed timely notices of appeal to
this court.
II.

"We review a dismissal based on forum non conveniens only for abuse of
discretion." Magnin v. Teledyne Continental Motors, 91 F.3d 1424, 1429 (11th
Cir.1996). When a district court "has considered all relevant public and private

interest factors, and [when] its balancing of those factors is reasonable, its
decision deserves substantial deference." Piper Aircraft Co. v. Reyno, 454 U.S.
235, 257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419 (1981).
5

The plaintiffs assert that the district court abused its discretion in this case
because: it erred in finding that Argentina was an available and adequate
alternative forum; it did not require MDC to prove that relevant factors weighed
heavily in favor of the alternative forum; it did not balance private interest
factors relevant to the instant case; and it considered public interest factors
when private interest factors were in the plaintiffs' favor. We have held that
"the [district] court abuses its discretion when it fails to balance the relevant
factors. Thus, for example, where the court does not weigh the relative
advantages of the respective forums but considers only the disadvantages of
one, it has abused its discretion." C.A. La Seguridad v. Transytur Line, 707
F.2d 1304, 1308 (11th Cir.1983). It is not an abuse of discretion, however, if
the district court does not issue a sufficiently detailed order. As long as "[w]e
can discern the court's reasoning from its order and the record, ... that is all that
is required in that respect." Magnin, 91 F.3d at 1431.

"A party moving to dismiss on the basis of forum non conveniens must
demonstrate: (1) that an adequate alternative forum is available; and (2) that the
private and public interest factors weigh in favor of dismissal." Republic of
Panama v. BCCI Holdings (Luxembourg) S.A., 119 F.3d 935, 951 (11th
Cir.1997). The plaintiffs argue that Argentina is not an alternative forum, and
that MDC therefore did not satisfy its burden of proof for dismissal.

The alternative forum prong of the analysis generally "will be satisfied when
the defendant is amenable to process in the other jurisdiction." Piper Aircraft,
454 U.S. at 255 n. 22, 102 S.Ct. at 265 n. 22 (quotation and citation omitted).
The plaintiffs assert that MDC is not amenable to process in Argentina, even if
MDC consents to the jurisdiction of Argentina's courts. Plaintiff Leonor
Alvarez submitted two affidavits from Professor Federico Videla Escalada, an
expert on Argentine law, in support of her opposition to the motion to dismiss.
In those affidavits, Escalada explained that "[in] the Argentine Republic there
are no Courts with jurisdictional authority over MDC." Escalada pointed out
that consent of the parties is an exception to the rule that the jurisdictional
authority of Argentine courts cannot be extended, but that the "exception would
be distorted if by virtue of a decision adopted at a foreign court one of the
parties is forced to litigate at undesired courts." Escalada also stated that the
"plaintiffs' constitutional rights would be violated" if they were "deprive[d] ...
of their right to claim for damages to the judges that have jurisdiction over the
domicile of [MDC]." The plaintiffs contend that Escalada's affidavits

demonstrate that the Argentine courts cannot exercise jurisdiction over MDC,
and that the affidavits are not contradicted by any evidence in the record. MDC
responds by referring to the affidavit of Professor Atilio Anibal Alterini, which
states that "Argentina would be an adequate, alternative forum"; this affidavit
thus disputes Escalada's statements regarding Argentine law.2 The district court
stated that because MDC consented to the jurisdiction of the Argentine courts,
its amenability to suit there was not an issue. We cannot find that the district
court abused its discretion in finding that Argentina is an available alternative
forum, as Alterini's affidavit provides adequate support in the record for that
determination.3
8

The plaintiffs also argue that Argentina is not an adequate forum for this case.
MDC argues that Alterini's affidavit establishes that Argentina is an adequate
forum; MDC also asserts that the plaintiffs' concerns do not render Argentina
inadequate as a forum.

An adequate forum need not be a perfect forum. While the alternative available
forum requirement normally "will be satisfied when the defendant is 'amenable
to process' in the other jurisdiction.... In rare circumstances ... where the
remedy offered by the other forum is clearly unsatisfactory, the other forum
may not be an adequate alternative...." Piper Aircraft, 454 U.S. at 255 n. 22,
102 S.Ct. at 265 n. 22 (citation omitted). The Supreme Court noted that a
remedy is inadequate when it amounts to "no remedy at all." Id. at 254, 102
S.Ct. at 265. There is adequate support in the record that the remedies available
to the plaintiffs in Argentina are neither "clearly unsatisfactory" nor do they
amount to "no remedy at all." The plaintiffs' concerns about Argentine filing
fees, the lack of discovery in Argentine courts, and their fear of delays in the
Argentine courts do not render Argentina an inadequate forum. "[S]ome
inconvenience or the unavailability of beneficial litigation procedures similar to
those available in the federal district courts does not render an alternative forum
inadequate." Borden, Inc. v. Meiji Milk Prods. Co., 919 F.2d 822, 829 (2d
Cir.1990) (quotation omitted). Further, the district court conditioned its order of
dismissal on MDC consenting to any Argentine judgment against it, agreeing to
conduct all discovery in accordance with the Federal Rules of Civil Procedure,
and voluntarily producing documents and witnesses within the United States.
Thus, the district court did not abuse its discretion in finding that Argentina is
an adequate forum for this case.

10

Because we find that the district court did not abuse its discretion in finding that
Argentina is an available and adequate alternative forum, we turn to whether
the district court abused its discretion in balancing the private and public
factors. The plaintiffs argue that the district court failed to balance all of the

private factors and only considered MDC's claims of inconvenience in litigating

in Florida. We disagree. "Relevant private factors include the relative ease of
access to sources of proof, ability to obtain witnesses, and 'all other practical
problems that make trial of a case easy, expeditious and inexpensive.' "
Republic of Panama, 119 F.3d at 952 (quoting Gulf Oil Corp. v. Gilbert, 330
U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947)). In this case, the
record supports that the district court was aware of the plaintiffs' private
interests in litigating in the United States, such as its claims that all of the
evidence relevant to its product liability and negligence claims was located in
the United States. The district court balanced these claims against MDC's
claims that the evidence related to its proposed defenses-such as negligent
maintenance of the aircraft and pilot error-was located in Argentina.4 The
district court concluded that the crash wreckage, witnesses, and important
documentary evidence were located in Argentina and Uruguay, and that
Argentina was therefore the more convenient forum for this case. This is not an
unreasonable conclusion, and the district court did not abuse its discretion in
finding that the private factors weighed in favor of dismissal.
11

"Relevant public interest factors include the sovereigns' interests in deciding the
dispute, the administrative burdens posed by trial, and the need to apply foreign
law." Id. at 953. The district court found that the public interest factors weighed
in favor of dismissal, and we agree. Argentina's interest in deciding this dispute
are stronger than the United States' interest. Almost all of the passengers on the
flight were Argentine citizens, none of the passengers were citizens of the
United States, and Austral is an Argentine airline that does not operate in the
United States. "[T]here is 'a local interest in having localized controversies
decided at home.' " Piper Aircraft, 454 U.S. at 260, 102 S.Ct. at 268 (quoting
Gilbert, 330 U.S. at 509, 67 S.Ct. at 843). Further, there is a possibility that the
district court would have to apply Argentine law to decide this case. Given the
foregoing, the district court did not abuse its discretion in finding the public
factors weighed in favor of dismissal.
III.

12

The district court did not abuse its discretion in finding that Argentina is an
available and adequate alternative forum, or in finding that the private and
public interest factors weigh in favor of dismissal. Therefore, we AFFIRM the
district court's order to dismiss this case based on forum non conveniens.

13

AFFIRMED.

NOTES:
*

Honorable Norma L. Shapiro, U.S. District Judge for the Eastern District of
Pennsylvania, sitting by designation.

Plaintiff Veronica Satz is a United States citizen residing in Argentina; Plaintiff

Laura Gimenez is a citizen of Argentina residing in Florida; Plaintiffs Leonor
Alvarez, Maria Rumachella, and Daniel Vazquez are citizens and residents of
Argentina, as were all decedents. Defendant McDonnell Douglas Corporation is
a Maryland corporation with its principal place of business in Washington.

Alterini's affidavit adopted the opinions of MDC's original expert, Professor

Guillermo A. Borda. The magistrate judge struck the affidavits of Professor
Borda and disqualified him as an expert for MDC, because Borda had a conflict
of interest. The district court overruled the plaintiffs' objections to the
admission of Alterini's affidavit.

Plaintiffs contend in their brief to this court that "Argentina also is not an
available forum because the forum non conveniens doctrine presupposes at
least two forums in which a defendant is amenable to process ..., and the critical
inquiry is whether there were two available forums at the time plaintiffs
brought these suits." (emphasis added). This argument fails because it misstates
the law in this circuit; the forum need only be available at the time of dismissal.
See Magnin, 91 F.3d at 1429 ("[T]he defendants agreed [as a condition of
dismissal] to submit to the jurisdiction of an alternative forum (in France),
rendering that forum available.") (citing Veba- Chemie A.G. v. M/V Getafix,
711 F.2d 1243, 1248 (5th Cir.1983) (holding that, for purposes of forum non
conveniens, "availability [of an alternative forum] refers only to the time of
dismissal")).

In the same vein, we note that MDC would likely suffer prejudice if it were the
sole defendant in a lawsuit in the United States while other, potentially
culpable, defendants were sued in Argentina. MDC intends to avoid liability by
arguing that other entities were responsible for the air crash. Such an accusation
is surely less persuasive when aimed at a set of empty chairs. If a Southern
District of Florida jury ultimately looked to place blame at the defense table, it
would have available only one, rather than several, defendants to bear the brunt
of its verdict and damage award.